On February 7, 2014, the Superior Court of Pennsylvania (“Superior Court”) overturned a Pennsylvania medical malpractice jury’s verdict in favor of the plaintiff. The jury had awarded damages in the amount of $365,500 to the plaintiff in her capacity as the executrix of her deceased husband’s estate and $282,000 to the plaintiff as the surviving spouse, for medical malpractice negligence, failure to obtain informed consent, and loss of consortium related to the implantation of a cardiac stent in her husband.

The medical malpractice defendants filed an appeal, claiming that the jury’s verdict was inconsistent with the causation testimony offered by the plaintiff’s medical expert.

The Underlying Facts

The plaintiff’s husband was referred to an interventional cardiologist for a diagnostic cardiac catheterization. The husband advised the cardiologist that he was allergic to nickel. The cardiologist allegedly advised the man that all stents contained nickel. The husband initially objected to the implantation of a stent but subsequently signed a consent form for various procedures, including implantation of a stent, depending upon what the cardiologist found during the catheterization. The consent form did not note that the man was allergic to nickel and did not state that stents contain nickel. Furthermore, the instruction for use of the stent stated that it was not indicated for use in patients with a known allergy to stainless steel (a metal alloy that contains nickel), which was not disclosed to the man.

The cardiologist implanted a stent in one of the man’s coronary arteries. Following the implantation of the stent, the man experienced itching, pain, and rashes, which progressively worsened over the next year. The plaintiff alleged in her medical malpractice lawsuit that the combination of physical symptoms and emotional distress put a strain on their marriage. The husband died from unrelated causes in 2011.

The Medical Malpractice Trial

The plaintiff’s expert at trial, an interventional cardiologist, testified that the defendant breached his duty of care when he failed to inform the man that, according to the stent’s package instructions, its use was contraindicated in patients with known stainless steel allergies.

The same expert prepared a report before trial in which he did not state that the stent was the direct cause of the man’s symptoms but instead stated that the symptoms were reported by the man and that the man felt that they were caused by the stent.

The Superior Court stated, “When a party must prove causation through expert testimony the expert must testify with “reasonable certainty” that “in his ‘professional opinion, the result in question did come from the cause alleged.’” … The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a[n] … expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that the condition was legally caused by the defendant’s conduct …. [I]t is the intent of our law that if the plaintiff’s … expert cannot form an opinion with sufficient certainty so as to make a [professional] judgment, there is nothing on the record with which a [factfinder] can make a decision with sufficient certainty so as to make a legal judgment.”

In the case it was deciding, the Superior Court stated that the symptoms reported by the man could presumably have been caused by contact with a panoply of objects, or another underlying medical condition. Therefore, in the absence of expert medical testimony, a causal link between the stent and the man’s symptoms is not obvious.

The Superior Court went on to state, “An expert’s testimony fails to qualify as competent evidence where he testifies “that the alleged cause ‘possibly,’ or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result. The Superior Court concluded that the plaintiff’s expert’s opinion “is professedly based on nothing more than the mere possibility of a causal nexus. An opinion based on mere possibilities is not competent evidence…. [E]xpert testimony cannot be based solely upon conjecture or surmise.”

The Superior Court held, “when asked directly if he could state with a reasonable degree of medical certainty whether the stent caused the symptoms, [the plaintiff’s expert] admitted he could not. Having considered the entirety of [the plaintiff’s expert’s] testimony, we conclude that he did not offer an opinion, within a reasonable degree of medical certainty, that the stent caused [the man’s] symptoms.”

If you or a loved one may have been injured (or worse) as a result of medical malpractice in Pennsylvania or in another U.S. state, you should promptly consult with a Pennsylvania medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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